Citation Nr: 1035022
Decision Date: 09/16/10 Archive Date: 09/21/10
DOCKET NO. 03-20 385 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to a disability rating in excess of 10 percent for
service connected psychophysiological musculoskeletal reaction,
to include tremors of the neck and head.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Morton, Counsel
INTRODUCTION
The Veteran served on active duty from July 1972 to February
1977.
This matter is before the Board of Veterans' Appeals (Board) from
a March 2003 decision by the Department of Veterans Affairs (VA)
Regional Office (RO) in Waco, Texas, which continued a zero
percent rating for the Veteran's service connected
psychophysiological musculoskeletal reaction, to include tremors
of the neck and head. In August 2006, the Board remanded the
case for additional development, to include collecting VA
treatment records from September 2005 onward, and, at the request
of the Veteran's representative, affording him a VA neurological
examination to assess the current nature and severity of his
disability. See Travel Board Hearing Transcript at 5, 8.
In January 2008, the RO increased the evaluation for this
disorder to 10 percent from November 19, 2001. Again before the
Board in May 2009, the Board remanded the case, directing the RO
to issue an appropriate Supplemental Statement of the Case
(SSOC). The RO issued an SSOC in May 2010, and the case is now
before the Board for further consideration.
The Veteran requested a Travel Board hearing, which was held in
November 2005 where he presented as a witness before the
undersigned Veterans Law Judge. A transcript of the hearing is
of record.
The Board notes that the most recent VA examination report of
record, dated February 2010, establishes that the Veteran
currently has dysthymic disorder and that this distinct disorder
is as likely as not related to his military experiences. See
February 10, 2010 VA Examination Report (diagnosing the Veteran
with "[d]ysthymic disorder, at least as likely as not caused by
or a result of his military experiences," and noting that "the
[V]eteran's dysthymic disorder and previously diagnosed
psychophysiological musculoskeletal reaction, neck and head
tremors, do not represent the same disturbance"). The Veteran
has affirmed that he began experiencing depression during his
period of active service. Id. To the extent that the
Veteran is raising the issue of entitlement to service
connection for dysthymia, this matter is referred to the
RO for appropriate action.
The appeal is REMANDED to the Agency of Original Jurisdiction
(AOJ). VA will notify the Veteran if further action is required
on his part.
REMAND
Regrettably, the Board determines that it must again remand this
case, as additional clarifying development is needed to fully and
fairly address the merits of the Veteran's claim. 38 C.F.R. §
19.9 (2009). In particular, the Board notes that the Veteran's
service connected psychophysiological musculoskeletal reaction
with tremors contains both a psychological and a physical
component, and the RO has rated this disability under the
schedule for mental disorders, specifically, Diagnostic Code 9423
relating to undifferentiated somatoform disorder. The medical
evidence of record indicates that, in addition to physical
tremors of the head and neck, the Veteran has many psychiatric
symptoms and behaviors captured in the rating criteria for mental
disorders, to include insomnia, anger/hostility, irritability,
anxiety, difficulty holding a job and maintaining relationships,
short term memory problems, and suicidal ideation at times. The
medical evidence of record also reveals that the Veteran has been
diagnosed with other psychological disorders, to include
dysthymic disorder, chronic anxiety disorder, personality
disorder and intermittent explosive disorder.
From the evidence of record, the Board cannot fully discern which
of the Veteran's symptoms and behaviors may be attributed to his
service connected psychophysiological musculoskeletal reaction
with tremors, which may be attributable to his other diagnosed,
but non-service connected, psychiatric disorders, or which (if
any) manifestations may be attributed to both the service
connected and non-service connected conditions. Thus, it is not
possible to accurate rate the Veteran's disability at this time,
and the Board deems it necessary to obtain a VA medical
examination with opinion to clarify these matters.
Accordingly, the case is remanded for the following action:
1. The Veteran must be afforded a VA
psychiatric examination for the purpose of
identifying which of his symptoms and
behaviors are attributable (in whole or in
part) to his service connected
psychophysiological musculoskeletal
reaction with tremors. The examiner
should review relevant portions of the
claims file and indicate as such in the
examination report.
Following a review of the relevant medical
evidence in the claims file, the clinician
is requested to address the following:
(a) Please identify the symptoms and
behaviors (both physical and
psychological) that are at least as
likely as not (50 percent or
greater probability) related (in
whole or in part) to the Veteran's
service connected
psychophysiological musculoskeletal
reaction with tremors. In doing so,
please provide a rationale as to why
such identified symptoms and
behaviors are at least as likely as
not attributable (in whole or in
part) to this disability.
(b) Please determine whether the
Veteran's insomnia, anger/hostility,
irritability, anxiety, difficulty
holding a job and maintaining
relationships, short term memory
problems, and suicidal ideation at
times, are at least as likely as
not (50 percent or greater
probability) related (in whole or
in part) to his service connected
psychophysiological musculoskeletal
reaction with tremors. Please
address all of these
symptoms/behaviors individually, and
please provide a complete rationale
for the conclusions reached.
NOTE: If the examiner cannot determine
what symptoms/behaviors are as likely as
not related to the Veteran's service
connected psychophysiological
musculoskeletal reaction with tremors, s/he
should so state.
The examiner is requested to provide a
rationale for all opinions expressed, to
include reference to pertinent medical
principles, evidence in the claims file,
and any medical literature.
2. Then, after completion of any other
notice or development indicated by the
state of the record, with consideration of
all evidence added to the record subsequent
to the last SSOC, the AOJ must readjudicate
the Veteran's claim. If the Veteran
remains dissatisfied, AOJ should issue an
appropriate SSOC and provide an opportunity
to respond.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369, 370 (1999) (per curiam).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112.
____________________________________________
LAURA H. ESKENAZI
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252, only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Appeals for Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b).